Friday, November 27, 2009

A federal judge on Wednesday upheld New York’s $3 billion redevelopment plan for Willets Point, an industrial section of Queens dominated by car-repair shops and waste-management businesses, finding that although the city had neglected the neighborhood’s infrastructure for decades, the constitutional rights of the businesses there — many of which will be forced to relocate under the plan — were not violated.

The plaintiffs, who organized themselves into an entity called the Willets Point Industry and Realty Association, and who “have established thriving businesses (notwithstanding the grossly inadequate infrastructure of the area)” and employ hundreds of people, “are understandably aggrieved by the fact that the plan that the city is in the process of implementing has no place for them,” the judge, Edward R. Korman of Federal District Court in Brooklyn, wrote. However, he ruled, it was not the place of federal judges to intervene in the dispute.

...Mayor Michael R. Bloomberg’s redevelopment plan was approved by the City Council, 42 to 2, last November. It calls for new sanitary and stormwater sewers, more power lines and new roadways and bicycle lanes. It also seeks new mixed-use development — including, possibly, a hotel and convention center — but envisions sweeping away the current industrial uses through eminent domain.

Judge Korman expressed sympathy for the plaintiffs whose property would be acquired by the government (with compensation) but found that they lacked a federal claim. “The timing of this lawsuit as well as plaintiffs’ own admissions at oral argument suggests,” he wrote, that the “real purpose of their lawsuit is to obstruct and forestall the implementation of the approved plan.”

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More evidence that Bloomberg (or whoever is pulling this power play) is a terror. I do think that neighborhood could use some improvements from a central planner, but I'm also sure that somehow greasy big-money developers will cheat the system to make money out of this.

To be fair, for many many years these businesses have profited from the undesirability of that neighborhood - in the form of low real estate costs, those costs being the result of their clustering on that spot. There's no reason for those businesses to be clustered like that. The antitrust laws are not relevant here, but the same sort of principles are in issue.

That's not to make a value judgment - there's nothing morally wrong with those businesses' behavior. I'm just saying it's a gray area in a number of respects.

More evidence that Bloomberg (or whoever is pulling this power play) is a terror.

Uh, "power play" is quite a stretch. Municipalities have done this sort of thing since the Kilo decision and have been upheld by the courts every time (some states have enacted laws preventing it, but NY isn't one of them). The key phrase here is:

(with compensation)

The city isn't just taking the land like a thief in the night. The owners will be compensated, probably more favorably than if they were just selling it on the market.

The city won't be building anything itself - once they've made the capital improvements they'll rezone it for residential use and sell it to developers. They'll likely write inclusionary housing into the zoning, which lets developers build larger if they include a certain number of affordable housing units.

This seems like a really interesting case. The city essentially shut down services to this area some time ago and is arguing that the fact that the area is blighted (because there are no services) gives them grounds to "redevelop" the area. That's the kind of creativity that makes me proud to be an American!

Link to the decision. It's not actually a challenge of the redevelopment, but rather an argument that the city's refusal to provide basic services was constituionally impermissible.

EDIT- This is a nice roadmap for future redeveloment efforts. If the city simply cuts off services to the affected area, they drive down the value of the property substantially. Therefore, when its time to pay "compensation"- the numbers are much smaller- to say nothing of the money saved by cutting off services in the first place. It's a win-win!

RB- I'd agree the the history of the location makes the case somewhat more complicated. That said, I'm really uncomfortable with this approach to redevelopment and it surprises me a little bit that it would be so widely supported politically in NY.

So . . . state and local governments should never attempt redevelopment?

The point here is that they shouldn't abuse eminent domain to seize land from one private party and give it to another. It should be strictly limited for real public uses (i.e. highways, sewage plants, schools, etc.). Not to help your real estate cronies do a development cheaper.

But in reality, yes. Government should stay the hell out of real estate development. Ease up restrictive zoning rules and let the private sector work.

The history of "redevelopment" in this country has largely been a disaster. From urban cores hollowed out and destroyed by expressways carved through the middle of neighborhoods, and enclosed malls that destroyed local businesses, to Corbusier-style public housing projects that made neighborhoods unlivable by destroying street-life and local retail and unimprovable b/c of their size and structure.

Wander around Manhattan. Many of the "slums" that government left alone have been gentrified and are lovely areas now. The "slums" that government "redeveloped" are still blighted high-rise projects with no hope of significant improvement.

but I think this is a better argument for use of ED than the Atlantic Yards project, for example.

This and the Atlantic Yards project are imo, despite the license to steal that is Kelo, evil. The government should not have the right to take property from one citizen and give to another. They call the Atlantic Ave (Yards makes it sound undeveloped and empty) area blighted when apartments there sold for multiples of the average house price in America. Totall crap.

Wander around Manhattan. Many of the "slums" that government left alone have been gentrified and are lovely areas now. The "slums" that government "redeveloped" are still blighted high-rise projects with no hope of significant improvement.

Even the big project developments in Manhattan aren't bad, really. In a lot of Manhattan, the projects are the only things preventing full-on yuppie ghettos. They are relatively integrated into the neighborhoods. Nothing like the Milbrook/Mitchell Houses monolith in the Bronx.

But this Willets Point thing (and the Atlantic Yards and the threatened use of eminent domain in West Harlem on behalf of Columbia University -- for a project I actually largely favor, if not for the eminent domain) is troubling.

I'm really uncomfortable with this approach to redevelopment and it surprises me a little bit that it would be so widely supported politically in NY.

Well, it smells like crap on the way to a game, and then there ain't #### to do around there after it's over. From a purely selfish perspective, on a dozen nights a year or so, building up that area would improve my quality of life. I imagine many if not most other Mets fans would agree. Dunno if that's a good enough reason to morally justify the action, but you can at least see why others would want it, I think.

Everyone involved should take a look at the aftermath of Kelo vs. City of New London.

Pfizer has pulled out of the deal, and all they managed to create was a bunch of vacant land.

Everyone should look at the aftermath of the 2000 MVP votes. Jeff Kent and Jason Giambi are crap now.

The current state of affairs is indeed the aftermath of Kelo v. New London, not the development plan. The development plan was initiated in 1998; eminent domain was to take place back around 2000 if not for the suits. Kelo and subsequent actions took 8 years to resolve. In those 8 years the economic landscape completely changed, much like the baseball skills of Kent and Giambi.

This is not to suggest the legal actions shouldn't have taken place. Certainly they should have. And it's not the fault of Kelo and others that the economy went in the crapper. But the passage of time forced by the legal actions did have an effect on that development plan. If you expect Willets Point to be held up 8 years while legal claims are made and resolved, sure, who knows what'll happen in that time. Given the precedent of Kelo I don't think the same risk exists here. Otherwise I'm not sure what lesson we're supposed to learn from Kelo that applies to any other such development.

But this Willets Point thing (and the Atlantic Yards and the threatened use of eminent domain in West Harlem on behalf of Columbia University -- for a project I actually largely favor, if not for the eminent domain) is troubling.

The difference being that there *is* commerce and activity going on in Willets' Point. That fact, however, being inconvenient for the developers who want to build whoknowswhat there.

There's really nothing up in that Manhattanville district that Columbia wants to develop in - and the Manhattanville project should bring a lot more positive externalities to the neighboring districts.

The difference being that there *is* commerce and activity going on in Willets' Point. That fact, however, being inconvenient for the developers who want to build whoknowswhat there.

There's really nothing up in that Manhattanville district that Columbia wants to develop in - and the Manhattanville project should bring a lot more positive externalities to the neighboring districts.

I completely agree about the relative value of the activities currently being pursued in those two neighborhoods. They're talking about expropriating a gas station and a couple of self-storage operations in West Harlem, which don't do anything to (A) make it a vital and lively neighborhood or (B) generate significant economic activity. I support the plan that Columbia has for the area and would like to see it acquire the land for that purpose. And I say that as an alum who has a real suspicion of Columbia's intentions in some of its development.

But I find it troubling in principle that government would exercise eminent domain for this purpose. Because that principle then leads to things like what's going on in Willets Point where the idea is to expropriate a whole lot of thriving businesses which do generate a good deal of economic activity and, what's worse, it gives government incentive to fail in its basic functions so as to create "blight," whatever that means.

, what's worse, it gives government incentive to fail in its basic functions so as to create "blight," whatever that means.

The good? news is, in New York they don't need such an incentive, because (as the Atlantic Yards decision firmly reiterated), "blight" means whatever the <strike>government</strike>developer wants it to mean. It's a standardless standard, and there are no judicial checks on it at all. New York effectively allows eminent domain to be exercised any time based solely on the relative political clout of the developer and landowner.

Columbia University, a tax exempt institution with how many hundreds of millions (or is it billions) of dollars in endowment can't buy out a gas station and a couple of self storage operations on its own?

The owners, particularly the guy who owns the self-storage places, are reluctant/unwilling to sell. My sense is that the gas station folks would sell, but they have been offered a new station out in the boondocks of Queens which would be much less valuable (in their view) than the current location, which is right of the West Side Highway. The self-storage guy seems even less inclined to sell out. There was a family which owned other self-storage places there which held out for awhile before settling for a nice payout.

And it's definitely billions, or at least it was before it turned out that a lot of the money was a figment of the financial imagination.

#31. I corrected my post. I looked it up and, as near as I can tell from a few articles which talked about Columbia's endowment going down 20% from a recent valuation of $7.15 billion dollars, it was around $5.7 Billion in April or May.

Another wrinkle in a plan involving Columbia University is that one has to wonder what the tax implication for the city is. The present owner pays real estate tax. Does Columbia?

Here in Central Massachusetts, the City of Worcester does not like it that Clark University and Holy Cross have plans to gobble up parts of different neighborhoods. And a big part of the reason why is taxes. They're decent neighborhoods now that pay taxes. These two tax exempt institutions don't have to, though they might be making some kind of PILOT, payment in lieu of taxes, donations to the City. Is New York promoting the removal of taxable land from the city's balance sheets and why?

Sounds like a good first step for opponents of the abuse of the power of eminent domain would be to have the definition of blight written into law in at least a somewhat restrictive fashion.

A lot of states do, as I understand. New York happens not to be one of them. One wonders if the family tie of the former governor to a major real estate developer has something to do with that. Or the fact that the mayor's sole purpose in life is to facilitate the construction of granite-countertopped luxury condos for Wall Street scumbags.

I looked it up and, as near as I can tell from a few articles which talked about Columbia's endowment going down 20% from a recent valuation of $7.15 billion dollars, it was around $5.7 Billion in April or May.

Yeah, they're rich as hell (which is why I don't donate them a red cent), but if the gas station and self-storage folks don't feel like selling, there's nothing Columbia can do without the state.

Here in Central Massachusetts, the City of Worcester does not like it that Clark University and Holy Cross have plans to gobble up parts of different neighborhoods. And a big part of the reason why is taxes. They're decent neighborhoods now that pay taxes. These two tax exempt institutions don't have to, though they might be making some kind of PILOT, payment in lieu of taxes, donations to the City. Is New York promoting the removal of taxable land from the city's balance sheets and why?

The city is in favor of it. They view this as (A) a huge jobs program, both for construction jobs and highly paid university employees (New York City has an income tax) and (B) an opportunity to create a core for biotech industry in the city and region. I do think that this project would be a boon for the city and the neighborhood (assuming they commit to a strong community benefit package), but the use of eminent domain to get makes me very uncomfortable.

rLr tells a very, um, slanted view of the Columbia eminent domain debacle. My understanding, as an alum and current student, is that Manhattanville is almost a paradigmatic eminent domain situation: The self-storage guy is a final holdout who's leveraging his hold-out status to get a way-above-market buyout from CU, like many multiples of market value. Unlike with the Kelo/Willets Point/Atlantic Avenue developments, there are clearly demonstrable wide-reaching and long-lasting economic benefits associated with the development beyond the increased tax revenue to the city. Manhattanville -is- blighted under any definition of the word; even the original building stock in that area is crappy because it was located in the trough of the 125th Street fault and was swampy and marred by the elevated IRT line. It's highly, highly unlikely the neighborhood would ever gentrify on its own without Columbia's organized redevlopment.

It's not just that there are particular problems occurring under vague definitions of "blight". It's that we we have to assume the most corrupt, nasty administration possible because somewhere, they will take control and we'll see a disaster beyond our imagination (unless you already live in Chicago).

Daley has abused "blight" so far, that all of the high property districts in the city are categorized as "blight" so he can siphon a large portion of the property tax money into his private slush TIF funds, and divert millions of dollars from the statewide education fund.

We have to assume that when we create these definitions and legal constraints that despots like Bloomberg or Daley will find themselves in office at some point.

The self-storage guy is a final holdout who's leveraging his hold-out status to get a way-above-market buyout from CU, like many multiples of market value. Unlike with the Kelo/Willets Point/Atlantic Avenue developments, there are clearly demonstrable wide-reaching and long-lasting economic benefits associated with the development beyond the increased tax revenue to the city. Manhattanville -is- blighted under any definition of the word; even the original building stock in that area is crappy because it was located in the trough of the 125th Street fault and was swampy and marred by the elevated IRT line. It's highly, highly unlikely the neighborhood would ever gentrify on its own without Columbia's organized redevlopment.

I agree with all that, as I thought I made clear, but am still uncomfortable with the use of eminent domain in principle because there's a clear slippery slope involved in turning private property over to other private owners.

rLr tells a very, um, slanted view of the Columbia eminent domain debacle. My understanding, as an alum and current student, is that Manhattanville is almost a paradigmatic eminent domain situation: The self-storage guy is a final holdout who's leveraging his hold-out status to get a way-above-market buyout from CU, like many multiples of market value.

Yes, that's Columbia's propaganda. Only, we know it isn't true, because, well, where's his leverage and where's his big payday? Let's set aside the fact that there's no evidence he has actually expressed a willingness to sell for a "way-above-market" offer; given New York's eminent domain law, he doesn't have leverage for that anyway. If he were just holding out for a better offer, he'd have bluffed up until the point that the eminent domain process began, and then folded.

(Note that the phrase "above market" doesn't make any sense when there is no market because the owner doesn't want to sell.)

In fact, he's not the lone "holdout." Many property owners didn't want to sell; Columbia threatened to use eminent domain on a lot of residential property, as well. But that didn't sell so well politically, so Columbia backed off on them, and decided to only threaten eminent domain against the less sympathetic (to the media) commercial property owners.

In fact, the "paradigmatic eminent domain situation" is when a specific piece of land is needed for a public use, like building a military base in a particular area for military reasons, or perhaps a road, railroad, or utility wires that have to go through a particular parcel, and there's no way to build these things without the particular parcel of land. Setting aside the lack of public use here, there's no reason why Columbia needs his land; it just wants it, because it's elitist and greedy. If he really were a lone holdout, it could simply develop the nearby land that it owns; he only owns a small portion of Manhattanville. They just don't want to share with a property that they consider

Oh, and as for "clearly demonstrable benefits," if it were so "clear," the state wouldn't have fought so hard against releasing the studies that allegedly showed this. (Let me clarify -- there are clear benefits to Columbia. but that's hardly the issue, now is it?) And they might have hired an impartial firm to conduct the studies, rather than the same firm Columbia had previously hired to push for the project on its behalf. But setting those procedural matters aside, benefits <u>compared to what</u>? Compared to Columbia buying up most of the area property and letting it sit vacant to make the area look blighted? Sure. Compared to Columbia simply developing its own land, and leaving this landowner alone?

In any case, there are simply no guarantees that the project will generate any of the alleged benefits. I'll support the next private-private eminent domain transfer in which the developer-recipient of the land provides a contractual guarantee that the city will see the promised benefits. If Columbia wants to guarantee, contractually, that there will be X new jobs and Y new tax revenues, and will make up the difference otherwise, then I'll believe that there are "clearly demonstrable benefits."

(It would also be more convincing as a claim if condemning authorities didn't fight so hard against making "clearly demonstrable benefits" the legal standard; instead, they want -- and the property-disrespecting courts have largely given them -- a deferential standard in which the city merely has to recite that by rote to avoid judicial scrutiny. )

Manhattanville is almost a paradigmatic eminent domain situation: ... there are clearly demonstrable wide-reaching and long-lasting economic benefits associated with the development

David N. responded to this already, but let me second his point -- "clearly demonstrable economic benefits" are not paradigmatic uses of eminent domain.

For most of American history, ED was deemed a justified "taking for public use" under the 5th Amendment. Public use was a public road, a public park or a public facility (such as a property needed to sink a well for the public water supply). When a public agency had another alternative which did not require the taking of land from a private owner, ED (even with "just comepensation") was not the normal paradigm.

In its infamous Kelo decision in 2005, the U.S. Supreme Court ruled 5-4 that a New London, Conn., redevelopment agency could seize people's private homes by eminent domain not only for public works but also for corporate development. The well-laid plans of redevelopers, however, did not pan out. The land where Suzette Kelo's little pink house once stood remains undeveloped. The proposed hotel-retail-condo "urban village" has not been built. And earlier this month, Pfizer Inc. announced that it is closing the $350 million research center in New London that was the anchor for the New London redevelopment plan, and will be relocating some 1,500 jobs. "They stole our home for economic development," ousted homeowner Michael Cristofaro told the New York Times. "It was all for Pfizer, and now they get up and walk away."

No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The argument is over what a "public use" is. In Kelo, the "public use" was a private corporation which (the City of New London thought) would have paid more in property taxes. The Berman case from Washington D.C. sounds a lot like the Manhattanville situation.

However, my understanding of the original intent of the language in the 5th Amendment defined a public use as a taking for use by the public, not redevelopment for a different private use. As such, public use was a public park, a public street, a public school, etc. No public use is whatever a public agency wants it to mean, unless there is legislation otherwise curtailing ED for such uses.

"Where does it say property shall not be taken for private use with just compensation? There is no textualist argument that private property cannot be taken by the government, with due process of law."

Move down the Constitution 5 more amendments:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The onus is on you, Freeball, to show where in the text where government has the authority to take private property for a private use.

However, my understanding of the original intent of the language in the 5th Amendment defined a public use as a taking for use by the public, not redevelopment for a different private use. As such, public use was a public park, a public street, a public school, etc. No public use is whatever a public agency wants it to mean, unless there is legislation otherwise curtailing ED for such uses.

This may be persuasive to people who believe that the original intent should control (although even so I'm not sure I follow), but it is not likely to be persuasive to somebody who doesn't accept that premise (which is the problem with all arguments based on original intent).

[69] It it better that it be whatever a court wants it to mean? Maybe it is, but I don't think judges should pretend that there's much justification for that apart from the court's own values or its take on societal values. And in this respect, nothing sets the dissent's view in Kelo apart from the majority's view in Roe, Lawrence v. Texas, or a dozen other "conservative" boogeymen.

So you're saying that all the businesses who benefit from eminent domain vote Democratic? I don't really care about how the SC voted on it, I care how its actually implemented. Republican or Democrat mayors, city councils, etc. aren't going to use, or not use eminent domain because they belong to one party or the other. Like the developers behind the land grab of Willets Point care about Bloomberg's dilly-dally with both political parties.

[72] Your rhetorical question assumes that (a) I care what the drafters would have thought (p.s. originalists tend to find the feelings of those at the ratifying conventions to be more persuasive); and (b) that what "anyone would want" is a good way of constitutional decisionmaking. Would your view of what the constitution requires depend on what is or isn't desirable? If so, is it really necessary to have a constitution, or can't we just vote or let the judge do whatever he wants?

I guess this is the same logic that thinks the government taking over 1/6 of the economy would be a splendid idea.

This may be persuasive to people who believe that the original intent should control (although even so I'm not sure I follow), but it is not likely to be persuasive to somebody who doesn't accept that premise (which is the problem with all arguments based on original intent).

Of course, you're right. If you believe in meanings changing without adding new amendments -- in other words, you don't value what the intent (or even the broad intent) was when the language was adopted -- then the Constitution offers you little or no protection. For example, if the Bush Administration wants to search your papers without a warrant, you may have no protection in the Constitution if you don't have a majority of justices who believe in the broad original intent of 4th Amendment. Perhaps your friends on the Court will find that the 4th Amendment has evolved in the age of terrorism and thus it now permits whatever the Administration wants. Same deal if a president wants to go to war. It used to be the case that Congress had to declare war. But original intent has no sway with you. So the words in Article 1 Section 8 which give Congress the power "To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water" are just original intent, but mean nothing to those who don't care about the original intent.

Do you really think the drafters of the Constitution meant for your interpretation to be the rule of law?

Heh. Original intent. The pretension that when the Constitution was drawn up that everybody involved agreed on each part, and that there was zero intentional ambiguity in parts left in for future generations to resolve. And that we know for certain which parts had total agreement, and which parts didn't. Also known as the attempt to shut down discussion by claiming that one has knowledge that he doesn't actually possess.

[75] Of course you can think of a whole slew of horrible things the government could do to me if the courts didn't stop them, but that isn't really an argument for giving the intent of a group of people who are no longer with us the force of law. I assume your belief in original intent would persevere even if you didn't agree with the result it caused. What if you and a majority of Americans believed that Bush should have been able to run for a third term? Or that a term should last 5 years? Why should the views of some other group of people control that decision? I assume you would be horrified by the proposition of putting these decisions in the hands of, say, the Danish parliament.

In any event, none of this changes the facts that originalism lacks the power to persuade people who don't believe in originalism to begin with. "That is the result that originalism requires" doesn't get you there.

Rich - your argument would make sense in 75 if it was an either/or - either we go by original intent, or it's a free for all. But in fact, we have a good idea of the core of what the founders definitely intended, and some idea of what was left vague, either intentionally or because it was just not considered. I have no dog in the whole ED argument here - but it annoys me when somebody tries to use an original intent argument as a means of shutting off discussion.

That original intent sounds nice, but the drafters/framers/whatever you want to call them couldn't even begin to imagine how the U.S. would progress, extend, and become the nation it has today. So to apply the Constitution as you would at the time it was first drafted, especially on a document that in truth isn't detailed at all, and forces the reader to interpret its content to decipher the document. To pretend that you actually knew what the drafters were contending when they wrote the documents when they didn't bother to write it into the document itself to me seems like a fool's errand.

Anyway, I also think the people championing original intent just use it for their own purposes and not apply it uniformly. Just look at the 2nd amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

How did a 'well regulated Militia' become a 'personal right to bear arms'? Note: I'm not trying to derail the thread. Really.

OK, Freeballin. You are suggesting that the states may have the right to take private property for non-public use. Well, states have constitutions too. I'm not going to search all 50 states, but I looked at NY and Virginia, and both constitutions have provisions (NY in Article 1, Virginia in the Bill of Rights) that look quite like the one in the US Constitution. Private property cannot be taken for public use without just compensation. Government powers are granted by their respective constitutions. Where's the part that says they can take private property for private use? Without it, eminent domain only exists when it's under public use. The Rights enumerated shall not be construed to limit the Rights of the People not specifically named.

As I said, Berman in 1954 started the expansion of the definition of public use, and it was a unanimous decision. Midkiff in 1984 expanded public use more, it was also unanimous. The point of that is, blame one political party or the other if it makes you feel better, but both parties have had more than enough time to pass appropriate legislation to change it. Neither has.

So you're fine with your town or city taking your house, paying you what they deem "fair" and selling the land to someone else to put up a bigger house so they'll pay more taxes?

Of course not, but that doesn't mean the Constitution gives me recourse to the courts to stop them.

This is an astonishing response. In case you don't understand your own words but what you've just said is that you don't think that there should be any recourse against abuse of power. Or, perhaps, it is impossible for an elected government to abuse its power.

You, good sir, are on the side of the devils on this one. Positivism is nothing but the handmaiden to powers that be.

And wrong. If there was no bar, explicitly or implicitly, against the government taking private property for private use, then there'd be no need for attempting to fit in these takings under eminent domain.

79 -- Being that I'm not a lawyer (and not an expert on the Constitution), take my arguments with a grain of salt. I'm also probably guilty of using original intent inconsistently. (I'm not a dogmatist along the lines of libertarians.)

I see "original intent" as being a broad view of the intent, not a narrow reading. So when you say in #76 things like "there was zero intentional ambiguity" it has no meaning to me. But just because you have a broad reading -- for example, as new forms of speech come about with technology -- a broad reading of the 1st Amendment can cover them under the notion of speech. However, broad intent only goes so far. I don't see how any court could permit warrantless wiretaps, yet they have.

What I don't understand about those who disregard original intent, but say they value the Constitution, is why they don't push for new amendments, if we have evolved in such a way that the writers of the Constitution and its amendments would have objected to. For example, I see the powers of the federal government to outlaw various narcotics (including some which are not traded between states or even between people) as an obvious violation of the limited enumerated powers of Article 1 Section 8 and a violation of Amendment X. Back almost a hundred years ago when the country had evolved in opposition to alcohol, the people understood that the federal government had no authority to tell a guy who wanted to make some rotgut in his yard that he couldn't or prohibit him from selling his whiskey to his friends. So the people instead amended the Constitution to allow the federal government to have powers it was not originally given. Then some time after Prohibition was repealed, the war on drugs began, and a new view of the Constitution seems to have emerged (under FDR) which allowed the feds to do whatever they wanted under the notion of evolving language.

but that isn't really an argument for giving the intent of a group of people who are no longer with us the force of law.

Their intent isn't automatically given the force of law. The text they left behind (like the words "public use") is given that priority. When the text doesn't squarely cover an issue (is typing on the internet speech) or, as in Tripon's example, when the understanding of the words changes over time, we use original intent as an interpretive tool in order to figure out what to do. Is it perfect- not even close. Is it better than the infinitely malleable Constitution that doesn't even control when its text is on point? Only if you believe in the rule of law as opposed to the rule of whoever has the biggest stick/the most judges in his pocket.

Tripon- in the context of that time, well regulated meant something roughly akin to reasonably proficient (a good pocket-watch at the time might have been described as well regulated.) Essentially what they are saying is- we might need guys with guns who know how to use them, so the fed can never take those guns away from the people. The fact that the word regulated now has a very different meaning makes the 2A seem difficult- but it's really rather easy to deal with.

This is an astonishing response. In case you don't understand your own words but what you've just said is that you don't think that there should be any recourse against abuse of power. Or, perhaps, it is impossible for an elected government to abuse its power.

You, good sir, are on the side of the devils on this one. Positivism is nothing but the handmaiden to powers that be.

What I don't understand about those who disregard original intent, but say they value the Constitution, is why they don't push for new amendments, if we have evolved in such a way that the writers of the Constitution and its amendments would have objected to.

Again, this assumes that original intent is the law -- that is a conclusion, not an argument.

OK, Freeballin. You are suggesting that the states may have the right to take private property for non-public use. Well, states have constitutions too. I'm not going to search all 50 states, but I looked at NY and Virginia, and both constitutions have provisions (NY in Article 1, Virginia in the Bill of Rights) that look quite like the one in the US Constitution. Private property cannot be taken for public use without just compensation. Government powers are granted by their respective constitutions. Where's the part that says they can take private property for private use? Without it, eminent domain only exists when it's under public use. The Rights enumerated shall not be construed to limit the Rights of the People not specifically named.

It is probably true that state and local governments can only do what their constitutions empower them to do, but that doesn't mean a proscription on takings for public use without just compensation equals a proscription on takings for private use with just compensation.

Try to make a limited point, people attribute to you all manner of additional crazy viewpoints.

Tripon- in the context of that time, well regulated meant something roughly akin to reasonably proficient (a good pocket-watch at the time might have been described as well regulated.) Essentially what they are saying is- we might need guys with guns who know how to use them, so the fed can never take those guns away from the people. The fact that the word regulated now has a very different meaning makes the 2A seem difficult- but it's really rather easy to deal with.

I didn't know this, very edifying.

Also, Tripon, in the context of the 18th century, the militia meant every adult male (roughly age 16-60). They were to be on call to defend the community and provide their own arms.

From The Militia Act of 1792:

I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia...

That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service...

Anyway, for the Democrat vs. Republican thing that some people here think guided the decision on ED.

Opposition to the ruling was stated by popular groups such as AARP, the NAACP, the Libertarian Party and the Institute for Justice. Many owners of family farms also disapproved of the ruling, as they saw it as an avenue by which cities could seize their land for private developments. The grassroots lobbying group American Conservative Union and The New Media Journal described the decision as judicial activism, as did numerous blogs.[19][20]

The New York Times editorial board agreed with the ruling, calling it "a welcome vindication of cities' ability to act in the public interest."[21] The Washington Post's editorial board also agreed with the ruling, writing, "... the court's decision was correct... New London's plan, whatever its flaws, is intended to help develop a city that has been in economic decline for many years."[22]

http://en.wikipedia.org/wiki/Kelo_v._City_of_New_London If groups such as the NAACP, and the Libertarian Party are on the same side, I don't think you can just say its a Liberal/conservative split and then call it a day.

#84 - my point is that too often people make claims of original intent - and don't realize that it is worse than useless to make that claim at the beginning of an argument. Because the Constitution WAS written and ratified by people with disparate views, and because there definitely were compromises with the idea that future generations would resolve them, not to mention the reality that many things were just not considered, any claim of original intent still requires a complex argument about why something is the law of the land. Too often on the intertubes original intent is the starting point of the discussion, or a means to limit discussion - when it should be the conclusion of the argument after a historical analysis. That was all I was trying to get across. In practice most (not all) calls to original intent ignore all this and are ultimately claims that they are right, and opponents are fundamentally wrong, without actual discussion. Note that I am not accusing you of this - my comment was to someone else, and even then it was mostly a kneejerk reaction to a pet peeve of mine.

It is probably true that state and local governments can only do what their constitutions empower them to do, but that doesn't mean a proscription on takings for public use without just compensation equals a proscription on takings for private use with just compensation.

Try to make a limited point, people attribute to you all manner of additional crazy viewpoints.

Except that, if the government isn't given the power in the Constitution, it doesn't have it. Because of the clauses or amendments that say that. Logically I understand your point, but when we're talking about eminent domain, it doesn't work.

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

What if some day the majority wants to interpret that as allowing debtors who default to be sold into slavery, as long as we make defaulting on your debts a misdemeanor?

How do you argue that is un-Constitutional without reference to what the drafters intended the "punishment for crime" language to mean?

Lassus, you know how hard it is to pass something approaching anything remotely by that by both houses of Congress, survive a veto from the president, then passed again by a super majority of Congress, then survive judicial review.

Of course the answer is that nobody would try to bring back slavery in the first place because nobody is that ####### crazy.

Except that, if the government isn't given the power in the Constitution, it doesn't have it. Because of the clauses or amendments that say that. Logically I understand your point, but when we're talking about eminent domain, it doesn't work.

I'm not sure what you're trying to say here. if you're saying that a state needs the federal constitution to affirmatively give it a power, you're wrong. If you're saying that certain state constitutions don't permit the sort of takings we're talking about here, I don't have a view of that, it isn't what was at issue in Kelo, and it has nothing to do with whether or not there is a textual constitutional argument that New Haven (or NYC) lacks this power.

How do you argue that is un-Constitutional without reference to what the drafters intended the "punishment for crime" language to mean?

If the text is clear, what difference does it make what the drafters intended? Would it make a difference if they didn't understand prostitution, identity theft, sex with a minor, or snorting coke to be crimes?